Just got the letter from attorney for Avva to DHS director Dr. Bruce Goldberg.
This is what we have said all along and NOW he is listening. Lars Larson will be discussing this on a show this week. The snowball is rolling, I think this will all be fixed in the next week or so.
Stay tuned for more developments!
Dear Dr. Goldberg,
Sir, I am writing to gain clarity as to why AVVA Cigars and Wine has not been granted its exemption Status for on premise smoking rights. Using the Oregon Administrative Rules, (OAR 333-015-0025 through 333-015-0080), which implement Oregon Revised Statute ORS 433; I am confused as to why we have been denied our Smoke Shop Certification. I would like to believe that this is just a misunderstanding and that we can resolve this issue immediately; clearing the smoke if you will of opinion and prejudice.
I only mean to imply that there may be biases from your department to our industry based on my conversation with your co-worker Kylie Menagh, your Tobacco Community Programs Liaison. Although Kylie and I disagree on the effects of pipe and cigar smoking, she would be happy to know we are allies in the fight of cigarette smoking. I am grateful the state employs such enthusiastic program leaders.
Sir I would like to turn your attention to a section of the DHS web page regarding “Exceptions to the Law” I have interjected comments in red between stated points of the Law.
Exceptions to the Law
Exceptions to the law will include:
To qualify as a smoke shop, a business must:
Currently our sales of Tobacco equals 82 – 83% of our gross sales
Our Policy is to ID anyone/everyone who appears 25 or less. Our employees are trained on this policy.
As certification is granted
No gaming/betting on premises
No sales of on premise consumption of alcoholic beverages
The office at Lancaster Mall has provided me with blueprints to show that this is a standalone building. I have forwarded this information to your office in the past and I am happy to do so once again. The configuration and seamlessness of the malls interior construction can seem a little confusing to an uninformed observer. It can appear as if the space occupied by AVVA could have been there from the beginning of the malls design. In fact it predates this wing of the mall. As originally constructed, this was a standalone liquor store for many years. The mall extended a wing and built a hallway and restrooms, adjacent to the back wall of the space now occupied by AVVA to enclose them, giving the appearance of a shared roof. So, this evening while searching Google Earth, I zoomed in on the mall and as I looked at AVVA it was very clear that this building has four distinct, non-shared walls. Additionally, due to the fact that AVVA is, in fact, a stand-alone building it has its own water and power feed as well as a discrete environmental control system, separate from the rest of the mall building. Were this not a distinctly separate building, this would not be so.
When I looked at the exemptions of other cigar stores, I am glad to see that the judgment and wisdom of your office has set a precedent to shops that can appear to touch each other, yet are in fact separate physical entities. As can be clearly seen now, we meet all the criteria not just in the spirit of the law but the letter of the law as well.
Dr. Goldberg, My belief that we qualify for an Exempt Smoke Shop is based is based in OAR definition as stated below:
For purposes of OAR chapter 333, division 15, the following definitions shall apply:
(1) "Act" means the Oregon Indoor Clean Air Act as it appears in ORS 433.835 through 433.875 and 433.990(5).
Please note that Definition 2- 21 has been removed for brevities sake, as it is not applicable to us or our situation.
(22) “Smoke shop” means a business that:
ü Is primarily engaged in the sale of tobacco with at least 75 percent of gross revenues resulting from tobacco sales in every fiscal year;
ü (b) Prohibits persons under 18 years of age from entering the premises;
ü (c) Does not offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises;
ü (d) Does not sell or offer on-premises consumption of alcoholic beverages; and
ü (e) Is a stand-alone business with no other businesses or residential property attached to the premises.
(23) “Wall” means any architectural partition with a height and length greater than its thickness, used to divide or enclose an area or to support another structure.
Stat. Auth.: ORS 433.855
(1) A business must apply to DHS for certification prior to allowing smoking on the premises.
(2) A business must apply for certification on a form prescribed by DHS (this form is available on the Internet at www.healthoregon.org/tobacco or by calling the Public Health Division, Tobacco Prevention and Education Program) and the following information or documentation must be included:
(a) Documentation demonstrating that at least 75 percent of the smoke shop’s gross revenue is derived from the sale of tobacco products or smoking instruments; and
(b) Documentation, including written descriptions or visual aids, demonstrating that the smoke shop is a stand-alone business with no other businesses or residential property attached to the premises.
(3) DHS shall review application materials within 30 days of receipt and shall determine whether the application is complete.
(4) Within 10 days of an application being declared complete, DHS shall deny or grant the application. DHS shall grant a business certification if, upon review of the application materials, DHS finds that sufficient documentation has been provided to demonstrate the compliance with section (2) of this rule. In lieu of denying an application, DHS may request additional information from the applicant in order to determine compliance with section (2) of this rule.
(5) DHS may permanently deny the application for smoke shop certification if an applicant provides information that is false or deliberately misleading.
(6) Every year, within 30 calendar days from the date certification was originally granted, a smoke shop must provide DHS with documentation demonstrating that at least 75 percent of the smoke shop’s gross revenue is derived from the sale of tobacco products or smoking instruments.
Dr. Goldberg I do not need to quote statute to you, I do so here only for the sake of clarity. Please understand, I believe the issue here is misinformation. My purpose in writing this letter is to remove all barriers from running my business and allow AVVA cigar to cater to my clientele. This “misunderstanding” is costing me thousands of dollars a week. In a time when my incidental holiday sales should be strengthening my bottom line for 2010, shoring up the anticipated lean times, I am lost in a bureaucratic battle trying to defend my rights. My business is at stake… My sales are down 30%. I am a small business owner who employs five employees. This interference of un-fair, targeted and maligned injustice from DHS is an abuse of the trust we the people put into our government. I am in compliance with the letter and the spirit of the law.
You and I can resolve this in an afternoon. I am being pressured by my customers, my employees and close personal advisors to take this fight to the media and national press. Lars Larson is ready to go with this story to his national audience. This would be great advertising for me, but what does that do for the state and all of the stakeholders here? From the era of the Magna Carta forward the concept has been “Lex Rex”, the law is King; not “Rex Lex”, the King is Law.
I am reaching out to you sir as a citizen, a business owner a tax payer and a voter please share the mantel of service you chose when you became a public servant with AVVA, and do the right thing. We are in the right, we are in compliance and we have precedent on our side.
831 Lancaster Dr. NE, #11B
Salem, OR, 97301
Located in the Lancaster Mall